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re: Pike
"To continue buying does he have to file those"
Yes. The Form 4 instructions say:
(a) This form must be filed on or before the end of the second business day following the day on which a transaction resulting in a change in beneficial ownership has been executed (See SEC Rule 16a-1(a)(2) and Instruction 4 regarding the meaning of "beneficial owner," and SEC Rule 16a-3(g) regarding determination of the date of execution for specified transactions).
Mea culpa.
Suggesting that a poster was rapidly becoming a Scary Mofo wasn't the proper way to get the gentleman's attention. However, after 8 hours of patiently explaining a relatively simple SEC filing issue in an effort to educate him, only to be met with his contention that I was "in a corner" and "wrong" I became, as any reasonable person might expect, frustrated.
I believe that a full reading of the thread would result in any objective person concluding that my characterization was accurate........it would also reveal that others commented on both my patience and the other posters ad nauseum refusal to accept the proper interpretation of the SEC rules.
For the record, my use of the term Scary Mofo wasn't something that just popped into my head as a handy pejorative. The initials SM represent the initials of the company's COO and had been referenced previously........my fellow poster had shown that he was unaware of the meaning of the initials in my previous post and an edited version of my statement was:
"Please be advised that MM no more meant market maker than SM meant Scary Mofo, the latter of which is something you are rapidly becoming."
I thought it was clever. Guess there's no room for that, huh?
The Form 3 (and Form 4) is not a FINRA regulated form, so I don't believe that the OTC market tier has any bearing on the requirement.
The 10% ownership must be in an "issuer with a class of equity securities registered pursuant to Section 12 of the Securities Exchange Act of 1934" and as you point out it is not an obligation of the issuer.
Given that the company's status viv-a-vis registered pursuant, etc. has not been changed I believe the individuals filings are still required. The 13 G issue is more complicated and I'm going to duck it.
Hopefully happyguy will weigh in.
Pedro,
I admire your graphic skills and am no match for them.
However, the Pike filing was correct and yours isn't.
At this point you remind me of a cat with its claw hung up in a screen door. Stop pulling and it'll come out.
Apologies to the board. Rest assured that this is my last post on this issue. I know that I've said it before, but this time I really really mean it :O)
patchman,
Respectfully disagree. I believe that the statement on the face of the filing is the basis for all beneficial owner filing requirements subsequent to publication:
"As of April 16, 2009, the Company had 722,866,061 shares of common stock issued and outstanding."
If you feel that I'm mistaken about this, please point me to the determinative regulation/instruction.
TIA
ps to previous poster. Obviously any updates to the number of authorized shares has absolutely no bearing on this issue.
Pedro,
Hopefully we can clear this up RELATIVELY quickly.
I don't know where Pike got the 100 million shares.
I know I should just stop there, but I I I I I I I I jjjjust can't:
The Pike Form 3 filing and all the other Form 3 filings were precipitated by the Form 8-A filing made at the end of September. They all report securities acquired prior to the 8-A filing. As you know, Form 3 merely requires a statement of beneficial ownership and not a transaction history.
Your requirement of a Form 4 for Pike would also require similar forms reporting the transaction details for the items reported on the Form 3's of MM, FL and SM.
Pedro,
I'm out of posts. The bulk of my allotment of 15 has been exhausted, and I choose that term carefully, in a futile effort to assist you. I don't regret the attempt although I had hoped for some measure of success by hour #8.
At this point, as you say, I'm just trying to get out of the corner. And here's my final attempt:
The filing, as you have re-created it, indicates in its final entry that Pike Capital Partners (QP) holds 142,000,000 cumulatively (see the little (2)&(3)? ). And that, my good man, is WRONG.
If you are inclined to thank me, I'm afraid you'll have to wait until tomorrow for your "you're welcome".
15 of 15 and out.
Pedro,
re: "Pike has the right to report two separate beneficially accounts, and report two separate beneficially balances – on the same Form 4."
Those aren't exactly the words that I would choose, but YES, that's exactly what I'm saying. And it is permitted, make that required, by the following from the instructions, as previously quoted:
"(v) Where more than one beneficial owner of the same equity securities must report transactions on Form 4, such owners may file Form 4 individually or jointly. Joint and group filings may be made by any designated beneficial owner. Transactions with respect to securities owned separately by any joint or group filer are permitted to be included in the joint filing. Indicate the name and address of the designated reporting person in Item 1 of Form 4 and attach a list of the names and addresses of each other reporting person. Joint and group filings must include all the required information for each beneficial owner, and such filings must be signed by each beneficial owner, or on behalf of such owner by an authorized person. "
If you have a specific question about the above I will try to respond. Otherwise, a careful reading of the instruction quoted should clarify the issue for you.
As HG and I have mentioned, don't be thrown by the term "issuer"..........it's not the same as "filer" in this circumstance.
Gracias, Pedro.
They way they filed.
Thanks SJ,
Hope I get a chance to see it...........
Pedro,
The following, from the Form 4 instructions, is my final offering on this issue. The SEC and Pike appear not to agree with you on the proper method of filing this form. I suggest that you reconsider the possibility that you may be mistaken.
"(v) Where more than one beneficial owner of the same equity securities must report transactions on Form 4, such owners may file Form 4 individually or jointly. Joint and group filings may be made by any designated beneficial owner. Transactions with respect to securities owned separately by any joint or group filer are permitted to be included in the joint filing. Indicate the name and address of the designated reporting person in Item 1 of Form 4 and attach a list of the names and addresses of each other reporting person. Joint and group filings must include all the required information for each beneficial owner, and such filings must be signed by each beneficial owner, or on behalf of such owner by an authorized person. "
http://www.sec.gov/about/forms/form4data.pdf
Issuer. The issuer is Spongetech.
Hopefully I can make a contribution without having to pick a side first.
My purpose was to point out that the firm running what someone previously calculated to be $100,000,000 in assets apparently disagrees with Pedro on how to file a Form 4.
Pedro,
Just trying to help.
Good Luck.
"But the numbers are supposed to add up, and they don't."
They're not supposed to add up. So they don't. Take a couple minutes and study this a little more carefully.
re: Form V
The instructions DO say:
"If a transaction is voluntarily reported earlier than required, place "V" in the appropriate column to so indicate; otherwise, the column should be left blank."
I've run into this problem before.......the form's design (and instruction) leads to a misinterpretation. Prior to the current design, there was no "V" in the heading of the column that you're looking at.........so a transaction meeting the above criteria was so noted by putting a "V" in the column across from the appropriate transaction(s) . At some point our friends at the SEC stuck the V at the top of the column, so the process now calls for putting an X in that column across from any appropriate transaction. Unfortunately they updated the form, but neglected to update the instructions.
The absence of any x's in that column on the form indicates that none of the Pike transactions were reported earlier than required.
Someday maybe they'll fix it.
ps. The actual transaction code "P" means basically an open market or private purchase. I'm not sure what you mean by a "stock deal", but there are several other transaction codes that would be more likely to be used for anything other than a basic purchase.
Correction for missed purchases:
The Form 3, required precipitated by the 9/28 8-A filing as were the others, reports Pikes holdings (88,000,000 and 11,000,000) as of 9/28.
The Form 4 reports subsequent purchases of approx. 43,000,000 made during the period of 10/19 thru 10/23. (Interesting that they straddled the price recovery).
The 13G, which would have been required upon its' reaching a 5% position, reports the total holding of 142,000,000.
Still strictly guesswork.
Interpreting the filings.
Here's my guess:
The Form 3, required precipitated by the 9/28 8-A filing as were the others, reports Pikes holdings (88,000,000 and 11,000,000) as of 9/28.
The Form 4 reports subsequent purchases of approx. 26,000,000 made during the period of 10/19 thru 10/23. (Interesting that they straddled the price recovery).
The 13G reports the total holding of 125,000,000, which would have been required upon its' reaching a 5% position.
Strictly guesswork.
I'm not much of a deep thinker and tend to rely a lot on "literally".
Such a filing would also offer the opportunity to skirt the common share calculation issue.
There's more. If the calculation uses the total vote as a criteria and DOESN'T consider Class B as a separate calculation, then:
Their 5,000,000 Class B's + 66,000,000 common result in total votes of 566,000,000. For that to be less than 10% of voting shares would require more than 5,660,000,000 total votes. There are 2,800,000,000 Class B votes, so there would have to be more than 2,860,000,000 common shares o/s.
Again:
"(ii) any beneficial owner of greater than 10% of a class of equity securities registered under Section 12 of the Exchange Act, as determined by voting or investment
control over the securities pursuant to Rule 16a-1(a)(1)
("ten percent holder");"
Patchman,
Please comment on the linked explanation for the need for an RME Form 3.
http://investorshub.advfn.com/boards/read_msg.aspx?message_id=42947920
October 5, 2009.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of SpongeTech Delivery Systems, Inc. ("SpongeTech") because questions have arisen regarding the accuracy of assertions in press releases to investors and in periodic reports filed with the Commission concerning, among other things: (1) The amount of sales and customer orders received by the company; (2) the company's investment agreements; and (3) the company's revenues as reported in its financial statements. In addition, SpongeTech has not filed any periodic reports with the Commission since the period ended February 28, 2009.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company.
Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed company is suspended for the period from 9:30 a.m. EDT, on October 5, 2009 through 11:59 p.m. EDT, on October 16, 2009.
By the Commission.
Elizabeth M. Murphy,
Secretary.
Citation: "74 FR 51626"
Document Number: "File No. 500-1"
Federal Register Page Number: "51626"
"Notices"
They can be pretty sloppy with this stuff...........they probably don't have a lead plaintiff. I have a Pacer subscription but frankly it's not worth the $.08/page to look at it for this issue.
They also say, on their 10/28 PR that "In addition the SEC has temporarily suspended trading in the Company's stock." Right on top of things!
In football it's called piling on...........cheesy but potentially damaging.
But they appear to have owned greater than 10% of the Class B shares as of the 9/28 reference date, well in excess of the Form 3 requirement:
"(ii) any beneficial owner of greater than 10% of a class of equity securities registered under Section 12 of the Exchange Act, as determined by voting or investment control over the securities pursuant to Rule 16a-1(a)(1)
("ten percent holder");"
X,
Can you please point me to the source of:
"(last tranche that was PUBLICLY disclosed was at $0.0185 - 1.85 CENTS per share! - to themselves). "
TIA
Thanks for checking.
I've had a few of those chats with the folks at the SEC myself. At some point in the middle of the call I feel like I've learned something and then, when I hang up, I'm not so sure anymore. I suspect that has a great deal to do with the reason that they appear to prefer to return even the clearest e-mail questions with a phone call rather than an e-mail. We used to call it a "fudge factor".
In any event, based on the FL and MM filings, I'm comfortable with my interpretation, although I understand your concerns. I'll watch for a definitive answer.......hope you can get one.
Jeff,
I wish I had paid closer attention to your post.
First, the full sentence under the Who Must File section of the instructions is:
(ii) any beneficial owner of greater than 10% of a class of equity securities registered under Section 12 of the Exchange Act, as determined by voting or investment control over the securities pursuant to Rule 16a-1(a)(1)
("ten percent holder");
As noted, there are 2 classes of equity securities, common and Class B.
And as you pointed out, in calculating 10% of the common class, the method to determine the total class vote would be O/S + (100 x Class B). And any owner of greater than 10% of the result would be required to file.
I know that one of your goals was to determine how many common shares Signature would have to be holding to require him to file. And obviously in order to do so would require knowing the magic number----the actual number of shares outstanding.
However, referring back to the instruction, we don't need to know the number of common shares outstanding to know that RME needs to file a Form 3. We know from forms already filed that they own(ed) 5,000,000 Class B shares and we know that 28,000,000 Class B shares were authorized and hence the maximum outstanding.........they owned greater than 10% of the Class B shares. So RME needs to file regardless of the number of common shares outstanding.
rocky,
I know that we've been over this twice now, but the documents that I'm looking at appear to be clear.
The 8-A filed by the company has the following statement marked:
"If this form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d), check the following box. x"
General Instruction A.(d) says:
"(d)
If this form is used for the registration of a class of securities under Section 12(g), it shall become effective:
(1)
If a class of securities is not concurrently being registered under the Securities Act, upon the filing of the Form 8-A with the Commission;"
The securities being registered have been previously registered under the Securities Act (of 1933) and hence are "not concurrently being registered under the Securities Act". The above clearly indicates that, under those circumstances,
the registration becomes effective "upon the filing of the Form 8-A with the Commission".
Please reconsider your interpretation based on the above.
I must admit that I'm having difficulty dropping this issue in part based on the Form 3 filings already supplied and the lack of history of the participants filing SEC documents some 5-6 weeks before their deadline.
I read the link when you posted it earlier.
If your understanding is correct then MM and FL filed their form 3's early.
Why do you suppose they would do that?
Are you of the understanding that SM and RME have until 11/27 to file?
More definitive...from the 8-A instructions:
"(d)
If this form is used for the registration of a class of securities under Section 12(g), it shall become effective:
(1)
If a class of securities is not concurrently being registered under the Securities Act, upon the filing of the Form 8-A with the Commission.
http://www.sec.gov/about/forms/form8-a.pdf
"So, the total votes would be calculated as 100 x Class B + 1 x O/S. "
You're right about the vote total(except for the 3,000,000, which is far from certain), but the Form 3 instructions call for filing by "any beneficial owner of greater than 10% of A CLASS of equity securities".
The attention that you bring to "voting or investment control" is interesting.
Thanks, rocky.
But wouldn't 1310.3 apply? And as a result, given the fact that existing securities are being registered, wouldn't the filing date of the 8-A be the effective registration date?
"1310.3 A company already reporting pursuant to Sections 13 or 15(d) may register a class of securities under Section 12 of the Exchange Act by filing a Form 8-A. In addition, the staff generally will not object if a non-reporting company conducting its IPO files a Form 8-A before the effective date of the Securities Act registration statement relating to the IPO. Other U.S. companies must register on Form 10 (foreign companies register on Form 20-F). A Form 8-A filed concurrently with a Securities Act registration statement becomes effective automatically on the latest of the filing of the Form 8-A, the effective date of the registration statement, or, if the securities will be listed on a U.S. Exchange, receipt by the SEC of certification from the Exchange.
2 things.
I BELIEVE that Class B and the common are treated as 2 different classes of securities and hence are not additive.
I'm certain, however, that the calculation insofar as the common is concerned is based on shares outstanding versus authorized.
SM is already late, as were the previous 2 filers. Assuming the Form 8-A of 9/28 was the trigger........and I believe it was......Form 3 calls for filing "no later than the effective date of the registration statement".
RME should be filing a Form 3 as "beneficial owner of greater than 10% of a class of securities registered under Section 12 of the Exchange Act"...........which occurred when the 8-A registered the Class B shares.
Signature only needs to file if its current holdings exceed 10% of the outstanding common. Two numbers that I believe may be unknown to any one person.
I have received a private message, to which I am unable to respond, saying:
"and yet the judge threw out his claims - not believing them to be true and accurate." Meanwhile, my original post clearly stated "discarded by the judge"......
And you are characterizing a situation in which an attorneys signature has allegedly been forged by Moskowitz or people to whom he provided compensation and a contention made by Moskowitz that HIS OWN signature was forged by others as "pretty much the same thing" and "another case of claimed forgery involving Moskowitz".
Jeffrey Dahmer was beaten to death by a fellow prisoner........I guess he was "involved in another murder".
There's no need for verbal slight of hand here. The facts are damning enough.
"Here is another case of claimed forgery involving Moskowitz and RME as it related to taxes in the State of New York."
It should be made clear that the linked document reflects Moskowitz's contention, discarded by the judge, that it was HIS signature that was forged. To call it a "case of claimed forgery involving Moskowitz" might imply otherwise.
The company was carrying some prepaid advertising on the last published balance sheet.
Is it not reasonable to think that the source of same might be prepayments for ad space and that similar prepayments might've rendered the due diligence of the Cav's credit manager a little less diligent than usual?
Previous contracts have been filed as exhibits to 10Q's in the past. And while the terms were given confidential treatment, there was enough detail to make it apparent that the company was extended terms.......at least in the cases of the Yankees and Mets.
Things may have changed.
The original shares of the company were registered under Section 8(a) of
the Securities Act of 1933:
http://www.sec.gov/Archives/edgar/data/1201251/000114420405006083/v13573_sb2.txt
The form 3 instructions say, and has been noted here many times:
"(a)This form must be filed by the following persons (“reporting person”):
(i) any director or officer of a bank with a class of equity securities registered pursuant to Section 12 of the Securities Exchange Act of 1934 (“Exchange Act”); (Note: Title is not determinative for purposes of determining “officer” status. See SEC Rule 16a-1(f) for the definition of “officer”);", etc.
http://www.sec.gov/about/forms/form3data.pdf
The asset base and the shareholder count required filing of form 8-A ("FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934"), which they did on 9/28.
The Form 3's that were filed, albeit about 10 days late, were based on the 8-A filing registering the company's shares under Section 12(g). We should expect to see additional filings from SM and RME, the latter for at least their Class B holdings.
If I'm mistaken, please show me where.